Citation Nr: 0307743
Decision Date: 04/23/03 Archive Date: 04/30/03
DOCKET NO. 02-11 238 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to service connection for impaired vision, both
eyes.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
T. Robinson, Counsel
INTRODUCTION
The veteran had active service from January 1951 to January
1954.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 2002 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Waco, Texas. The RO, in that decision, granted service
connection for bilateral hearing loss and denied service
connection for impaired vision, both eyes. The veteran
subsequently perfected a timely appeal regarding the issue as
to his vision.
FINDING OF FACT
The veteran does not have any disorder of the eyes other than
refractive error.
CONCLUSION OF LAW
An eye disability for which compensation may be paid was not
incurred in or aggravated by service. 38 U.S.C.A. § 1110,
5107 (West 2002); 38 C.F.R. § 3.303(c) (2002).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Preliminary Matters - VCAA
In November 2000, during the pendency of this appeal, the
President signed into law the Veterans Claims Assistance Act
of 2000 (VCAA), which substantially amended the provisions of
chapter 51 of title 38 of the United States Code, concerning
the notice and assistance to be afforded to claimants in
substantiating their claims. VCAA § 3(a), 114 Stat. 2096,
2096-97 (2000) (codified as amended at 38 U.S.C.A. § 5103
(West 2002)).
VA has long recognized that the Department has a duty to
assist the veteran in developing evidence pertinent to his
claims. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.103(a)
(2002). The recent changes in law have amended the
requirements as to VA's development efforts in this, and
other pending cases, modifying and clarifying VA's duty to
assist a claimant in evidentiary development. See VCAA,
supra. See generally Holliday v. Principi, 14 Vet. App. 280
(2001). In addition, VA has published new regulations, which
were created for the purpose of implementing many of the
provisions of the VCAA. See 66 Fed. Reg. 45,620 (Aug. 29,
2001) (now codified as amended at 38 C.F.R. §§ 3.102,
3.156(a), 3.159, and 3.326(a) (2002)).
Judicial caselaw is inconsistent as to whether the new law is
to be given retroactive effect. The U.S. Court of Appeals
for Veterans Claims has held that the entire VCAA potentially
affects claims pending on or filed after the date of
enactment (as well as certain claims that were finally denied
during the period from July 14, 1999, to November 9, 2000).
See Holliday, supra; see also Karnas v. Derwinski, 1 Vet.
App. 308 (1991). That analysis would include cases which had
been decided by the Board before the VCAA, but were pending
in Court at the time of its enactment. However, the U.S.
Court of Appeals for the Federal Circuit has held that only
section 4 of the VCAA (which eliminated the well-grounded
claim requirement) is retroactively applicable to decisions
of the Board entered before the enactment date of the VCAA,
and that section 3(a) of the VCAA (covering duty-to-notify
and duty-to-assist provisions) is not retroactively
applicable to pre-VCAA decisions of the Board. See Dyment v.
Principi, 287 F.3d 1377 (Fed. Cir. 2002); Bernklau v.
Principi, 291 F.3d 795 (Fed. Cir. 2002) (stating that Dyment
"was plainly correct").
Although the Federal Circuit appears to have reasoned that
the VCAA may not retroactively apply to claims or appeals
pending on the date of its enactment, the Court stated that
it was not deciding that question at this time. In this
regard, the Board notes that VAOPGCPREC 11-2000 (Nov. 27,
2000) appears to hold that the VCAA is retroactively
applicable to claims pending on the date of its enactment.
Further, the regulations issued to implement the VCAA are
expressly applicable to "any claim for benefits received by
VA on or after November 9, 2000, the VCAA's enactment date,
as well as to any claim filed before that date but not
decided by VA as of that date." 66 Fed. Reg. 45,629 (Aug.
29, 2001). Precedent opinions of the chief legal officer of
the Department, and regulations of the Department, are
binding on the Board. 38 U.S.C.A. § 7104(c) (West 2002).
Therefore, for purposes of the present case, the Board will
assume that the VCAA is applicable to claims or appeals
pending before the RO or the Board on the date of its
enactment.
The VCAA contains a number of new provisions pertaining to
claims development procedures, including assistance to be
provided to claimants by the RO, and notification as to
evidentiary requirements. We have carefully reviewed the
veteran's claims file, to ascertain whether remand to the RO
is necessary in order to assure compliance with the new
legislation. We note that the development of medical
evidence appears to be complete. By virtue of the
correspondence, the Statement of the Case (SOC) and
associated correspondence issued since the veteran filed his
claim, the veteran has been given notice of the information
and/or medical evidence necessary to substantiate his claim.
The veteran was advised that if he adequately identified
relevant records with names, addresses, and approximate dates
of treatment, the RO would attempt to obtain evidence on his
behalf.
In addition, the veteran was advised of the specific VCAA
requirements in correspondence dated in May 2001, as well as
in the SOC issued in July 2002. The RO also advised the
veteran of the evidence obtained and considered in deciding
his claim in the SOC. It appears that all obtainable
evidence identified by the veteran relative to his claim has
been obtained and associated with the claims folder, and that
neither he nor his representative has identified any other
pertinent evidence, not already of record, which would need
to be obtained for an equitable disposition of this appeal.
See Quartuccio v. Principi, 16 Vet. App. 183 (2002) (noting
VA must communicate with claimants as to the evidentiary
development requirements of the VCAA). See also Charles v.
Principi, 16 Vet. App. 370, 373-74 (2002).
Accordingly, we find that VA has satisfied its duty to assist
the veteran in apprising him as to the evidence needed, and
in obtaining evidence pertaining to his claims, under both
former law and the new VCAA. 38 U.S.C.A. § 5107(a) (West
2002); Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2096-98
(2000) (now codified as amended at 38 U.S.C.A. §§ 5103 and
5103A (West 2002)). The Board therefore finds that no useful
purpose would be served in remanding this matter for more
development. Such a remand would result in unnecessarily
imposing additional burdens on VA, with no benefit flowing to
the veteran. The Court has held that such remands are to be
avoided. See Winters v. West, 12 Vet. App. 203 (1999) (en
banc), vacated on other grounds sub nom. Winters v. Gober,
219 F.3d 1375 (Fed. Cir. 2000); Soyini v. Derwinski, 1 Vet.
App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430
(1994). In fact, the Court has stated, "The VCAA is a
reason to remand many, many claims, but it is not an excuse
to remand all claims." Livesay v. Principi, 15 Vet. App.
165, 178 (2001) (en banc).
It is the Board's responsibility to evaluate the entire
record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002).
When there is an approximate balance of positive and negative
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant. 38
U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2002);
VCAA § 4, 114 Stat. 2096, 2098-99 (2000) (now codified as
amended at 38 U.S.C.A. § 5107(b) (2002)).
II. Factual background
A review of the service medical records show that, upon
enlistment and separation, the veteran's visual acuity was
20/20, bilaterally. The December 1954 separation examination
contains the following notation, "diminished visual acuity
in 1954, glasses prescribed with poor results, wearing to
date."
Private medical records dated in March 2001 from FS, D.O.
show that the veteran was accorded an eye examination. The
examination showed visual acuity of 20/40 in the right and
left eyes, uncorrected. Pupils were equal, round, and
reactive to light accommodation. There was no disease or
evidence of injury noted in either eye. The examiner
diagnosed healthy eyes. A prescription for eyeglasses was
provided.
III. Legal Criteria
Pursuant to 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303, a veteran
is entitled to disability compensation for disability
resulting from personal injury or disease incurred in or
aggravated by active military service.
Congenital or developmental defects, and refractive error of
the eye, are not diseases or injuries within the meaning of
applicable legislation pertaining to disability compensation.
See 38 C.F.R. § 3.303(c). The VA General Counsel VA has
noted, however, in a precedential opinion, that if, during
service, superimposed disease or injury does occur, service
connection may be warranted for the resultant disability.
VAOPGCPREC 82-90 (1990).
The Court of Appeals for Veterans Claims has consistently
held that, under the law cited above, "[a] determination of
service connection requires a finding of the existence of a
current disability and a determination of a relationship
between that disability and an injury or disease incurred in
service." Watson v. Brown, 4 Vet. App. 309, 314 (1993).
The fact that a condition occurred in service alone is not
enough; there must be a current disability resulting from
that condition. See Rabideau v. Derwinski, 2 Vet. App. 141,
144 (1992); Chelte v. Brown, 10 Vet. App. 268, 271 (1997).
This principle has been repeatedly reaffirmed by the United
States Court of Appeals for the Federal Circuit, which has
stated that "a veteran seeking disability benefits must
establish . . . the existence of a disability [and] a
connection between the veteran's service and the
disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir.
2000).
IV. Discussion
In a written statement, the veteran has asserted that he
suffers from vision problems that were related to his active
service. He stated that upon enlistment into service his
visual acuity was 20/20, and upon separation his visual
acuity was not 20/20, because during service eyeglasses were
prescribed. He further stated that he was told his left eye
was not as strong as his right eye and he would have to wear
glasses for the rest of his life. He asserts that his duties
as a jet engine mechanic exposed him to heat, glare, and
fumes.
The Board concludes that the evidence of record shows the
veteran does not have any disorder of the eye other than
refractive error. The veteran's service medical records do
not contain any references to any eye disease or injury. The
report of a medical examination conducted in December 1954
for the purpose of his separation from service shows that he
had 20/20 uncorrected vision. The December 1954 separation
examination also contained the following notation,
"diminished visual acuity in 1954, glasses prescribed with
poor results, wearing to date."
Private medical records dated in March 2001, from Dr. FS,
show that the veteran was accorded an eye examination. The
examination showed visual acuity of 20/40 in both eyes,
uncorrected. Pupils were equal, round, and reactive to light
accommodation. There was no disease or evidence of injury
noted in either eye, and the examiner diagnosed healthy eyes.
The veteran has submitted no evidence to show that he
currently has impaired vision related to service. In sum,
the medical evidence, in-service and post-service, fails to
show that the veteran incurred any superimposed disease or
injury to the eyes during active service, or that the veteran
currently has a service-related eye disability.
The medical records do show that the veteran has refractive
error of vision, but this has not been related to service or
an incident therein. Moreover, refractive error is not
considered a disability for VA compensation purposes, and it
may not be service connected. 38 C.F.R. § 3.303(c).
Accordingly, the Board concludes that an eye disability for
which compensation may be paid was not incurred in or
aggravated by service.
ORDER
Entitlement to service connection for impaired vision, both
eyes, is denied.
_____________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.